Medical Expert In PA Workers’ Comp Need Not Be Eyewitness To Claimant’s Disability Throughout Claim Petition

As a practical matter, a doctor is rarely present the instant a person gets injured at work. Similarly, the way litigation is done, a doctor has to testify while the injured worker is still disabled from work. Yet, despite these limitations, doctors routinely testify that the work injury led to the disability, and that the disability continues. But, of course, there are limits on how distant a doctor can be from the time at issue.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald), the Commonwealth Court of Pennsylvania dealt with this issue. Here, a laborer fell from a roof while tearing off materials and suffered a skull fracture and an injury to his left eye. Since the employer had no Pennsylvania workers’ compensation insurance, a Claim Petition was filed against the PA Uninsured Employers Guaranty Fund (UEGF).

The injured worker was first seen by his doctor two months after the injury, and was only treated by that doctor for about six months. After that last date, the injured worker failed to appear for any more appointments. At the time of the last appointment, the doctor theorized that the injured worker would continue to improve and may be able to return to work in six weeks, pending confirmation of the improvement. The Workers’ Compensation Judge (WCJ) found the testimony of the injured worker, and his doctor, to be credible, and granted the UEGF Claim Petition, awarding ongoing total disability benefits. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

An appeal was made by the UEGF to the Commonwealth Court of Pennsylvania. The UEGF argued that since the injured worker’s medical expert could not comment on the disability status after the last date the injured worker was seen, the testimony of ongoing disability could not constitute substantial competent evidence. The Court disagreed with the UEGF and also affirmed the WCJ.

“(I)t is a fundamental principle of workers’ compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight,” the Court noted, adding, “the WCJ’s fact-finding authority includes the authority to draw reasonable inferences from the evidence.” The WCJ here credited the testimony of the injured worker and his treating physician, both of whom supported ongoing disability. As to the time after the last time the injured worker was seen (a fact, to some degree, inherent in every single workers’ comp case), the Court simply stated, “a claimant’s medical expert is not required to be an eyewitness to the claimant’s disability throughout the pendency of a claim petition.”

The Court was similarly unmoved by the testimony of the treating physician that he anticipated the condition of the injured worker would improve. This opinion was found to be just speculative, and unable to meet the requisite burden to stop disability, without the confirmation the doctor mentioned.